The opinion
Supplemental opinion on rehearing delivered November 8, 1971
Banks & banking — director’s duty as fiduciary, violation of — sufficiency of evidence. — Rehearing denied where the proof failed to show bank director was aware of the bank’s loan limit at the time the events were taking place, and the proof failed to establish a violation of director’s common law or statutory duty as a fiduciary.
George Rose Smith, Justice, on rehearing. The appellant now calls attention to a sentence in Dr. Rushton’s testimony, in which he stated that the bank’s loan limit was $100,000.00. Of course Dr. Rushton learned that fact during the first trial of this case, but there is no direct proof that he was aware of it when the events were taking place. As we indicated in our opinion, that question^was not developed at the trial.
It is also argued on rehearing that we overlooked the appellant’s contention that Dr. Rushton violated his common law duty as a fiduciary, as well as his statutory duty. The point was not overlooked. It was and is our view that the proof did not establish a violation of either duty; so there was no reason for us to make any distinction between the two.
Rehearing denied.
Fogleman, J., would grant the rehearing.